Ted Cruz, the Natural Born Citizenship Debate, and Political Payback

I saw an article with this title: “6 Things Ted Cruz Wants You to Forget.” The first one is “He wants you to forget he was born in Canada.” I’m sure there are lots of people who know he was born in Canada to an American mother and some people who don’t know. And I’m sure there were a lot of people who did not know that Barry Goldwater, who ran against Lyndon Johnson in 1964, was born in Arizona before it officially became a state.

I’ve seen a number of conservative sites arguing that Sen. Cruz is not eligible to be President because (1) he was born in Canada, (2) his father was not a United States citizen at the time of his birth, and (3) because Minor v. Happersett (1875) requires that both parents must be citizens of the United States in order for their child to be a natural born citizen even though the 1875 case states the following: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.”

The question is whether Ted Cruz is eligible to run for the presidency based on the following provision under Article II, section 1 of the Constitution:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

It all comes down to the definition of “natural-born Citizen” and “Citizen of the United States.” Cruz’s mother was a United States citizen when she gave birth, making her son at least a citizen of the United States in the same way John McCain (Panama), Barry Goldwater (Arizona before it was a state), and Mitt Romney (Mexico) were qualified to run for president even though they were not born on US soil.

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Unlike Cruz, however, both parents of the above three presidential candidates were citizens at the time of their birth.

What if a woman in the military gives birth to a child while she’s deployed overseas and her husband is a German citizen? Is her child a US citizen? What if a US family is working in another country, and they have a child while living abroad? Is their child a US citizen? What if a single mother who is a US citizen gives birth to her child while she is vacationing in Italy and the father is an Italian citizen and he refuses to accept the child as his? Is her child a US citizen? In all cases, the answer is yes.

But are they “natural born” citizens? Do they have to be as long as they are “Citizens”? These are the questions, and there is a lot of debate on the subject, and it hasn’t been a real issue until Barack Obama came along, although the original “birther” president was our 21st President Chester Alan Arthur who was accused of being born in Canada instead of Vermont.

Minor v. Happersett does not deal with these cases since the court’s decision was about voting rights for a woman who was a citizen. The case was not about if a US citizen was eligible to be President. (The court ended up ruling that there was no right to vote in the Constitution for any citizen, male or female.) As far as I can tell, there has not been a court case defining “natural born Citizen.”

But can’t a presidential candidate qualify if he or she is simply a “Citizen” since that’s what Article II, section 1 requires? If Ted Cruz was born to a mother who was a US citizen at the time of his birth, then he’s a citizen and meets the constitutional requirement.

There are cases that relate to the “natural born Citizen” question. Law professors Neal Katyal and Paul Clement offer the following guidelines on the issue.

“All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.”1

According to Katyal and Clement the “natural born citizen” definition is rooted in British Common Law. “They were also well documented in Blackstone’s Commentaries, a text widely circulated and read by the Framers and routinely invoked in interpreting the Constitution.”2

“No doubt informed by this longstanding tradition, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were U.S. citizens at birth, and explicitly recognized that such children were ‘natural born Citizens.’ The Naturalization Act of 17903 provided that ‘the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .’”4

The last phrase is important in Ted Cruz’s case because since “his father had also been resident in the United States, Senator Cruz would have been a ‘natural born Citizen’ even under the Naturalization Act of 1790.”

He makes this very important point, one that I also noticed: In Minor v. Happersett “the Supreme Court expressly explained that ‘For the purposes of this case it is not necessary to solve’ the issue of parental citizenship, thus clearly stating that its discussion was not part of, and the resolution of the issue not necessary to, the underlying holding or ruling of that case.’”5

At this point in time, the legal scholars and armchair constitutionalists can argue about this until the cows come home. Unless or until the Supreme Court issues a defining ruling, it’s an ongoing debate with no final resolution.

Since John McCain, who was not born in the United States, has become a Cruz “birther,” all the more cause that I’m voting for Cruz. So much of this issue is the result of anti-Obama sentiment and the claim that he was not born in Hawaii and thus not a “natural born citizen.”

The attack on the left is a form of political payback.

Ann Coulter is making the same claim about Cruz. She’s a big Trump supporter.

Trump is calling into question Cruz’s citizenship because he’s getting closer to him in the polls.

Then there are the political malcontents who will not be satisfied with any candidate.

Finally, there are the legitimate constitutionalists who want to get it right.

Gary DeMar

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